Are Obama’s new airstrikes in Iraq legal?

AllahpunditPosted at 2:01 pm on August 12, 2014

I think it’s charming that a story like this would still appear in American media three years after O waged undeclared war in Libya and maybe three weeks before he decides he has the power to amnestize 10 million people.

Just for funsies, though: Is this war illegal? Expert consensus seems to be “not yet.”

Now in Iraq, most constitutional law experts say Obama had the authority to launch strikes to protect Americans in Erbil.

“That, I think, was a lawful exercise of his powers as commander in chief, even without prior congressional approval,” [Professor Peter] Raven-Hansen said.

Some though question whether he had the authority to launch additional air strikes to protect refugees from the Yezidi sect who have taken refuge from ISIS on Mount Sinjar outside of the city…

[Professor Robert F.] Turner said that Obama can continue ordering air strikes against ISIS, because they are not a foreign state, just a terrorist group.

“What he’s doing, it’s not an act of war,” Turner said. “He’s essentially coming to the defense of Iraq. Nobody recognizes ISIS as a state. They’re not set up as a government, they’re just a band of terrorists.”

I’m not sure why Turner thinks that the War Powers Act should apply only to action against sovereign states. Here’s the key bit from the statute:

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Blowing up jihadis on the ground while they fire at U.S. jets in the air would seem to me to qualify as “hostilities.” Under the law, once he’s formally reported to Congress that hostilities have begun, the president can wage war on his own for 60 days; at that point, he needs authorization from Congress to continue or else he must withdraw. Obama’s already said that he expects it’ll take years, not weeks, to push ISIS back, so we’re going to hit that 60-day wall inevitably in early October. What happens then?

Let’s refresh our memories of how this played out when he went after Qaddafi in 2011. Early on, in March, the White House simply denied that they were at war in Libya when asked by congressional aides. A week later, Hillary told Congress that the White House’s own lawyers were comfortable with their actions under the War Powers Act and that Obama had no intention of seeking authorization from Congress. Six weeks later, with the 60-day deadline bearing down, the NYT reported that White House aides were searching for some plausible interpretation of the War Powers Act that would let them keep fighting whether Congress liked it or not. (One theory allegedly kicked around at the time was that if O simply “paused” every 60 days, he could reset the WPA’s clock, thereby allowing the president to wage war without legislative approval indefinitely.) At this point, angry conservatives and embarrassed liberals in the House realized that O was laughing in their face, so they passed a bipartisan resolution demanding that he seek congressional authorization for action in Libya. Less than two weeks later, the White House finally spoke up in its own defense: The War Powers Act wasn’t triggered, they claimed, because the months-long U.S./NATO bombing campaign against Qaddafi … didn’t qualify as “hostilities.” It was two days later that the Times dropped another bombshell, that Obama’s own lawyers in the DOJ and at the Pentagon advised him that the campaign did amount to hostilities and that he should have complied with the WPA. He simply ignored them and sided with another advisor who told him what he wanted to hear.

So, as you can see, he takes this stuff seriously.

Given how they weaseled out of the definition of “hostilities” to avoid complying with the Act in 2011, I assume they’ll do the same thing with ISIS. Here’s how the Times described their deliberations over Libya:

The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

It’s only “hostilities,” according to the White House, if (1) the U.S. is leading the mission, (2) U.S. forces are at risk, and (3) there’s a risk of escalation. Numbers 1 and 3 are both satisfied in the case of bombing ISIS so expect a heavy White House emphasis on number 2 as they try to ignore the law this time around. In fact, we may end up seeing them argue that U.S. forces are never really at risk unless troops are on the ground (or unless they’re facing an enemy with sophisticated defenses to air attack), which would mean in practice that as long as the president declines to use infantry, he can bomb anyone he wants for as long as he wants from the air without ever needing approval from Congress. Neat!

I suppose O could always argue that the 2002 AUMF in Iraq covers action against ISIS, but given that his team’s been claiming lately that AUMF should be repealed, that would be one awkward argument. Exit question: Er, why doesn’t he just ask for congressional authorization? Who’s going to vote no on liquidating these savages?